Lawrence v Attorney-General for the State of Queensland

[2015] HCATrans 83

[2015] HCATrans 083

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B41 of 2014

B e t w e e n -

MARK RICHARD LAWRENCE

Applicant

and

ATTORNEY‑GENERAL FOR THE STATE OF QUEENSLAND

Respondent

Application for special leave to appeal

KIEFEL J
KEANE J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 17 APRIL 2015, AT 10.27 AM

Copyright in the High Court of Australia

MR P.J. CALLAGHAN, SC:   May it please the Court, with MR J.J. ALLEN, QC, I appear for the applicant.  (instructed by Legal Aid Queensland)

MR P.J. DUNNING, QC, Solicitor‑General of the State of Queensland:   May it please the Court, I appear with MR J. ROLLS for the respondent.  (instructed by Crown Law (Qld))

KIEFEL J:   Yes, Mr Callaghan.

MR CALLAGHAN:   Your Honours, the Court of Appeal acknowledged that before it could intervene it had to find error in the reasoning of Justice McMurdo.  It purported to do so by latching onto paragraph 49 of his Honour’s judgment, which appears in the application book at page 13 and specifically at ‑ ‑ ‑

KIEFEL J:   I think perhaps you might use the term “focused on” rather than “latching onto”.  It just seems slightly more respectful.

MR CALLAGHAN:   I meant no disrespect, but it was the sole focus, shall I say, of the court’s attention.  The court’s treatment of that paragraph is in application book 62 in paragraph 90 of the court’s judgment.  The conclusions reached in that paragraph invite a series of questions.  We respectfully ask, firstly, could this ever reasonably be described as an error, that is, could his Honour’s observation ever be described as an error?  The issue in question was whether the applicant could have been believed about his own state of mind.  Now, everyone involved had reservations about that.  In the context, it would have been strange if it were otherwise.

But there had been a relevant exchange on the topic and that is reproduced in application book 83, at about line 10, where the whole question of whether the psychiatrists had advantage over, as his Honour put it, the rest of us was raised, and it was acknowledged that he did have.  So it is on the basis of the evidence that he had before him and on the basis of an exchange like that that his Honour observed that it was “unlikely” that he could derive further assistance from more evidence. 

Now, that was an assessment, an opinion.  It involved a question of degree, but it was an assessment made on the materials and the arguments before him.  We respectfully submit it is impossible to characterise it as an error.  It was an observation that did not involve a challenge to any premise upon which the courts operate.  Still less, we would say, could it be suggested that it was an error that had any significance based on the materials that were before the court.  It was an opinion about something which was not being argued.  That leads to the next point and the points are associated ‑ ‑ ‑

KIEFEL J:   Just before you move on to that, is the Court of Appeal to be taken to say that the primary judge here could not, in effect, defer to medical opinion and that he was required to satisfy himself about the reliability of Mr Lawrence in terms of reporting?  The views of the psychiatrists were not disparate so much as qualified in different ways.

MR CALLAGHAN:   That is so.

KIEFEL J:   But they were qualified and that might have led to disquiet.  Perhaps the essential question might be characterised as whether or not the primary judge had to view for himself the evidence and not defer simply to the opinions of medical experts in order to provide a foundation for the opinions expressed by the experts.

MR CALLAGHAN:   Which, and I am not avoiding your Honour’s question, but it does in turn invite attention to the nature of the litigation and the question of how it was to be conducted.  To come back, I think, to the first part of your Honour’s question, it is inherent in the reasoning of the Court of Appeal that there is, if you like, a freestanding, independent obligation upon a trial judge to make an inquiry about the matters to which you refer, irrespective of whether they are being agitated by the parties and, given the statutory framework under which the application ‑ ‑ ‑

KIEFEL J:   That approach may be answered perhaps by the fact that it is the court that is the trier of facts.  The experts are only giving opinions upon a foundation of their own view of the reliability of the person in question, but it is ultimately for the court to try the fact of reliability.  That seems to be the basis upon which the Court of Appeal has approached it.

MR CALLAGHAN:   Well, yes, but the approach has to be conducted in accordance with the statute – I am talking about the Dangerous Prisoners (Sexual Offenders) Act 2003, and specially section 13, which in subsection (4) prescribes the matters to which the court must have regard, and the first of those is the reports. There is no reference to anything about the manner in which the reports must be obtained or the manner in which the court must treat any information.

KIEFEL J:   But this is not an exclusive list, this is simply directing attention to mandatory matters which the court must have regard to.

MR CALLAGHAN:   That is so.

KIEFEL J:   You would not expect a statute to address basal evidentiary issues.

MR CALLAGHAN:   No, and it is an indication, though, of the way in which the litigation is conducted and it is conducted as an application on issues framed by the parties.

KIEFEL J:   Which brings me to this:  is your complaint about this not having been raised, which I know is disputed by the respondent, to be taken as a complaint of lack of procedural fairness?

MR CALLAGHAN:   Yes.

KIEFEL J:   If that is the case, the relief you would seek then would have to be not just that the decision of the Court of Appeal be quashed but that it be reheard.  Would that not be right?

MR CALLAGHAN:   Yes, your Honour, and indeed, it would have even been open for the Court of Appeal to receive evidence on the matter itself.  The statute would have provided for that or it could have remitted the matter to the primary judge for the issue to be dealt with, but that is the error about which complaint is made and that is the relief that is sought.  That is something that we do say was an elementary failure of process that does call into attention the manner in which an appeal should be argued and therefore invites the intervention of the Court.

KIEFEL J:   You say that the point only arose in the Court of Appeal, that there was no issue taken before his Honour the primary judge.

MR CALLAGHAN:   We do say that because – we point and have done this in the written argument to the grounds that were actually argued and say that an appeal must be upheld on the basis of a ground and that there was nothing in the grounds which could have enlivened the ability of the Court of Appeal to deliver the judgment on the basis of an issue that was identified for the first time in its own published reasons.

KEANE J:   Mr Callaghan, section 13(4)(aa) and (a) require the court to have regard to the reports of the psychiatrists.  Section 4(h) also requires the court to have regard to the risk that the prisoner will commit another serious sexual offence if released into the community.  Now, that is requiring the court to come to a view about the risk. 

MR CALLAGHAN:   Yes.

KEANE J:   In this case, the extent of the risk clearly depends, having regard to the evidence that was adduced, on the reliability of your client as a reporter of his experience – his internal experience.

MR CALLAGHAN:   Everyone acknowledged that, including his Honour.

KEANE J:   The evidence of the psychiatrists was not unequivocal, can I suggest?

MR CALLAGHAN:   Yes.

KEANE J:   It was more favourable to your client than those reports had been in the past but they were qualified by this recognition that it all depends upon the reliability of your client as a self‑reporter, if you like.

MR CALLAGHAN:   Yes, your Honour.

KEANE J:   As Dr Lawrence said no doubt one would expect that – one would hope that the psychiatrists would be in a position to come to a reasonably reliable view about that.  But all that having been said, in the end does not the requirement of 4(h) that the judge have regard to the risk of commission of a further offence, does it not require the court to be in a position itself to come to a view about the reliability of your client as a self‑reporter on these matters which are absolutely critical to the resolution to that issue. 

MR CALLAGHAN:   We would say that the answer to that question would vary from case to case and that there could be – it is not open to read into the statutes words that make that imperative – that there would be cases in which the reports prepared by the psychiatrists could be so abundantly clear.

KEANE J:   Mr Callaghan, I accept that.  I accept that proposition but where the reports themselves clearly highlight the critical nature of the self‑reporting and the reliability of the self‑reporting that is going on, and where they are not categorical as to the confidence that the psychiatrists have in that self‑reporting, is it not a deficit in the applicant’s case that the applicant’s evidence is not available for scrutiny by the judge?

MR CALLAGHAN:   Well, again, without seeking to avoid the question, if it was, it was a deficit that he was entitled to have alleged against him and to have been given the opportunity to answer, and there were options available to him in that regard but that - what your Honour has put to me was never put.

KIEFEL J:   It was his application though, was it not, brought ‑ ‑ ‑

MR CALLAGHAN:   It is his appeal - sorry, no, it is the Attorney’s application and the Attorney’s appeal.  The Act provides for the application to be made pursuant to section 5.

KIEFEL J:   Yes.

MR CALLAGHAN:   At the cornerstone of our argument, your Honour, is that it is the onus that lay on the Attorney.  In fact, this was a review pursuant to section 27 of the Act.

KIEFEL J:   But the Attorney cannot require your client to give evidence.  What the Attorney has to do is put forward material and the court has to address the matters in section 13(4) and in particular, as Justice Keane has pointed out, the risk to the community if released.

MR CALLAGHAN:   What the Attorney has to do is what any litigant has to do in any litigation and frame the issues and draw grounds upon which an appeal can be upheld.

KIEFEL J:   But the Attorney contended that regardless of the psychiatric reports the risk remained.  I take it that that is what the Attorney argued.

MR CALLAGHAN:   Well, the Court of Appeal ‑ ‑ ‑

KIEFEL J:   If that is the case, was it not incumbent upon your client to provide sufficient evidence to satisfy the key question about reporting?

MR CALLAGHAN:   Had the Court of Appeal put him on notice that that was the case, he could have done that, even in that court.  They exercised their discretion afresh but not on the basis of any further material that could have addressed this issue which, as I say, was identified for the first time in the publication of its judgment.

KIEFEL J:   But why should we not infer that there was a choice made, given that these psychiatric reports were not able to say to the requisite standard that he was reliable as a reporter.  The psychiatric reports were addressed on a qualified - qualified as to that matter, but as to the level of improvement which he had shown, which was substantial.  Faced with those reports, surely the onus lay upon your client to resolve the question of reliability one way or the other if some of the matters to which the court had to address were to be overcome.

MR CALLAGHAN:   No, with respect, there is no indication in the legislation or the argument that the onus was on my client at that point.  The onus remains on the person making the application to curtail his liberty and in terms of making an inference about a forensic decision he may have made, we refer again to the passage at application book 83 where the Attorney’s position was articulated.

KIEFEL J:   Quite.  I think, perhaps, the question which truly arises here is perhaps shifting in its focus in a wrong direction.  The question surely is not whether or not the trial judge was required to require, in effect, your client to give evidence, but it remained the fact that he not having chosen to give evidence, the primary judge could not have been satisfied as to the necessary matters and the Attorney‑General’s onus was discharged.

MR CALLAGHAN:   Well, that is going to be a discretionary – what you are talking about now is an exercise of a discretion and that ‑ ‑ ‑

KIEFEL J:   No, it is a question of evidence, sufficiency of evidence.  Really what the Court of Appeal is saying is there was no evidence before the primary judge as to the foundational facts to support the opinions.

MR CALLAGHAN:   That is right, that is the Attorney’s response, is that there was no evidence ‑ ‑ ‑

KIEFEL J:   That is right.

MR CALLAGHAN:   ‑ ‑ ‑ but there was.  It cannot be a question of whether there was sufficient evidence or whether the evidence was qualified.  There was evidence.

KIEFEL J:   No, no.  No evidence to favour the position taken by your client.

MR CALLAGHAN:   The position taken in not giving evidence?  I am sorry, your Honour.  There was evidence before the court on which the primary judge could act in making the order that he did.  There were the reports.  The statute provides that those are the matters to which regard must be had, they were there.  There was some evidence.  If the complaint was that there was insufficient weight given to certain aspects of the evidence ‑ ‑ ‑

KIEFEL J:   No, I think I am repeating myself, Mr Callaghan. What the Court of Appeal was saying was that there was no evidential foundation for those reports.

MR CALLAGHAN:   That, with respect, we say cannot be right because there was.  It could have been different, but nobody complained about that.  I have used my time, I think.

KIEFEL J:   Yes, thank you, Mr Callaghan.  Yes, Mr Solicitor.

MR DUNNING:   Thank you, your Honours.  Your Honours, ultimately, in our respectful submission, even if all were to be accepted by our learned friends as to their complaints about the decision in the Court of Appeal, it does not give rise to an issue that would warrant a grant of special leave.  It is, at most, in our respectful submission, as was articulated by what your Honour Justice Kiefel, effectively a natural justice point that in some way the Court of Appeal denied Mr Lawrence natural justice. 

Now, in our respectful submission, even if that were to be accepted, it would not give rise to a matter of sufficient importance for a grant of special leave, but ultimately, in our respectful submission, it is a case of no serious prospects at all and that is because the essential complaint made about the hearing in the Court of Appeal – sorry, can your Honours hear me all right?

KIEFEL J:   Yes, thank you.  If you would move closer to the microphone it would assist, thank you, Mr Solicitor.

MR DUNNING:   Thank you, your Honours.  Your Honours, the essence of the complaints made about the Court of Appeal’s decision are, with respect, without foundation, and can I demonstrate that to your Honours by very briefly taking you to the notice of appeal and then ultimately the Court of Appeal’s disposition of it, but along the way can I just deal with this question of onus.  In our respectful submission, it is not an issue that the Crown – sorry, the Crown not discharge its onus. 

There was a requirement for the consideration set out in section 13 to be met.  The evidence put on by the Crown dealt with that issue and what it left large was the reliability of Mr Lawrence’s account to the psychologist and the psychiatrists, unanswered by him.  The evidence that had been adduced was, as the Court of Appeal found, adequate – in our respectful submission, more than adequate – to discharge the onus that the Crown bore on that application.

Your Honours, to demonstrate that it was a matter that was properly alive in the Court of Appeal I ask your Honours first of all to go to the notice of appeal which your Honours will find starting on page 21 of the appeal book but the particular passages I want to take your Honours to are on page 22, ground (c) where it was said:

there was no basis upon which the learned primary judge could have found the supervision order would adequately protect the community –

and in the absence of the plausibility or reliability of Mr Lawrence being addressed, that was so, then (d), the decision was:

(ii)unsupported by the evidence; and

(iii)unreasonable –

(e)on the evidence, the learned primary judge erred in making an order for the release –

because there was not evidence that could displace the caveat that the psychologist and psychiatrist themselves had imposed.  Your Honours, it may be seen that it was a live issue at trial before Justice McMurdo and it is perhaps convenient to pick up the references in the Court of Appeal’s own judgment. 

In that regard, can I ask your Honours please to turn to page 51 of the appeal book and I am going to take your Honour just to a couple of the passages of the cross‑examination before Justice McMurdo that are recounted in the Court of Appeal and which, if our learned friends were right, would have been irrelevant, both in the Court of Appeal and below, but, in fact, demonstrate that this very issue was live. 

So if I can take your Honours, please, to paragraph [57] of the Court of Appeal’s decision that recounted some of the cross‑examination of Dr Lawrence.  At about line 50 through to the end of that page, your Honour will see that there is reference there to the requirement of the acceptance or otherwise of Mr Lawrence as truthful.  Then, again, on the next page, paragraph [61], again at about lines 50 to 60, your Honours will see that that was an issue being agitated at trial with the psychiatrists. 

Then, if I can take your Honours, please, to page 55 and your Honours will see in respect of Dr Grant at paragraph [70] at about line 25 the paragraph starts “No doubt the conclusion” and again, your Honours, in paragraph [71] at line 40 – but your Honours perhaps it was most graphically revealed by the report of Dr Lawrence - can I take your Honours back, please, to page 50 of the appeal book in paragraph [55] of the Court of Appeal’s decision at about line 40 where their Honours say:

However, Dr Lawrence subsequently qualified her opinion in this way –

and then if I can invite your Honours to read about the first six lines of that quoted passage.  The mental health expert’s reports, at first instance, had plainly made it clear that any view was conditional upon the acceptance of Mr Lawrence as a witness of the truth to those medical practitioners.  He gave no evidence.  He led no other evidence to satisfy that and, indeed, the cross‑examination served to reinforce that point of view.  So, consequently, it was an issue that was alive at trial. 

As we have demonstrated at paragraph 11 of our outline by reference to our written submissions in the Court of Appeal, it was also an issue that was raised in advance of the hearing of the appeal itself because submissions in writing were made - your Honours will see them set out in paragraph 11.  They are consistent with the grounds of appeal that I took your Honours to at the outset and the grounds on which the Court of Appeal relied. 

We would respectfully disagree with our learned friends as to a notice of appeal being a pleading.  It is not.  The grounds were adequately identified and then amplified in the appropriate and orthodox way in the written outline, so there was ample notice of the point, and then agitated orally.

Finally, can I take your Honours, please, to how the Court of Appeal, in fact, dealt with the issue?  Can I ask your Honours to first of all go to page 42 of the record and at paragraph [28] at about line 45, your Honours will see through to about line 55, their Honours identify our argument consistent with how the case had been run below, consistent with the grounds of appeal or the particular ones, and consistent with the written submissions that had been put before your Honours. 

As your Honours will have seen from reading the judgment, the Court of Appeal was direct when it disagreed with arguments that had been raised by the Crown in the Court of Appeal.  In fact, they rejected a number of them and did so in clear terms.  Yet nothing in their judgment suggests this was some argument of their own.  Can I take your Honours, please, to the next page, paragraph [29] of the Court of Appeal decision, at about lines 18 to 19:

The Attorney‑General argued that it was unreasonable for the court not to have recognised that adequate protection of the community could not be ensured by the release –

It goes on.  Can I then take your Honours to page 44 of the application book in paragraph [34] of the Court of Appeal’s reasons?  Can I ask your Honours please to read about two‑thirds of paragraph [34]?

KIEFEL J:   Yes.

MR DUNNING:   Then, may I take your Honours to paragraph [37] on the following page?  Then, your Honours, after paragraph [37] the Court of Appeal carefully analysed all three of the medical experts and…..what parts of their opinions were conditioned or dependent upon an acceptance of Mr Lawrence as a witness of truth and what parts were fairly just an expression of professional opinion not so dependent.  Then if I can take

your Honours to paragraph [86], which appears at page 60 of the appeal book.  Their Honours begin their discussion about the conclusions reached by Justice McMurdo:

The primary judge’s acceptance that a supervision order was nevertheless appropriate was substantially based upon the opinions –

of those doctors.  Then paragraph [87], and I invite your Honours, please, to read paragraph [87].  Then paragraph [88], and I invite your Honours to read the first sentence and then can I ask your Honours, please, to read the last two sentences, starting at about line 31.  The first sentence of [89] and that led to their Honours’ conclusions that are set out in paragraph [90], and our learned friends have already taken your Honours to paragraph [90] of the Court of Appeal’s reasons.

In our respectful submission, your Honours, there is simply no factual basis for the assertion of a denial of natural justice.  That is the essence of the complaint that underlies the application for a grant of leave.  This was an issue at first instance.  It was fairly raised by the notice of appeal.  It was agitated in the written outlines.  It was agitated on appeal without objection.  The conclusions their Honours come to at paragraph [90] were not only, in our respectful submission, an orthodox application of principle, they were ultimately, in our respectful submission, irresistible when one considers the statutory scheme against which they were working.

As we understand it, if for that point there is no error, there is no complaint about the re-exercise of the discretion made by the Court of Appeal, it follows, in our respectful submission, there should be a refusal of a grant of leave.  Were there to be a grant of leave it would be, though – as we would respectfully adopt by way of submission, Justice Kiefel’s observation earlier – that it would only be a remission to the Court of Appeal to determine according to law, as our primary submission is.  There is no error identified in the Court of Appeal’s reasoning and, in any event, it is not an error that would rise to a matter that warranted a grant of special leave.  Unless we can assist your Honours any further, those are our submissions.

KIEFEL J:   Thank you, Mr Solicitor.  Is there anything in reply, Mr Callaghan?

MR CALLAGHAN:   Not by way of argument; that has been dealt with either in our written submissions or orally.  The only part of the application book to which further reference we would seek to make is at application book 14, line 10.  If there be any dispute about his Honour the primary judge’s understanding of his role, there is an explicit statement to the effect

that he knew that the functional issue was a question for the court, one on which the Attorney bore the onus, and he proceeded to resolve it on the basis of the arguments made before him.  Thank you.

KIEFEL J:   Yes, thank you.  The Court considers that there are insufficient prospects of success in this matter to warrant a grant of special leave to appeal.  Special leave is refused. 

The Court will now adjourn briefly to reconstitute.

AT 11.01 AM THE MATTER WAS CONCLUDED